Hargis v. Kansas City, C. & S. Ry. Co.

• Decision Date: 22 March 1890
• Citation: 13 S.W. 680,100 Mo. 210
• Court: Missouri Supreme Court
• Parties: HARGIS v. KANSAS CITY, C. & S. RY. CO.

13 S.W. 680

100 Mo. 210

HARGIS v. KANSAS CITY, C. & S. RY. CO.

Supreme Court of Missouri.

March 22, 1890.

ADVERSE POSSESSION — RAILROAD RIGHT OF WAY.

A railroad company entered on lands, and, in the presence of the owner, and on his verbal promise to give a right of way, staked off a right of way of the usual width of 100 feet. The company constructed its tracks, and had actual, exclusive, and continuous possession of the 25 feet along the center of the right of way occupied by the tracks for the prescriptive period, claiming title to the whole strip, and exercising over it such usual acts of ownership as the nature of the property permitted. Held, in an action of ejectment by the grantee of the land, who purchased with knowledge of the existence of the road, that the company had title, under the statute of limitations, to the 100-feet strip.¹

Appeal from circuit court, Cass county; CHARLES W. SLOAN, Judge.

Wallac Pratt and I. P. Dana, for appellant. Boggess & Moore, for respondent.

RAY, C. J.

This is an action of ejectment, in common form, brought in March, 1886, in the circuit court of Cass county. On its face the petition seeks to recover the described quarter section, but the answer of defendant disclaims all interest therein except as to the strip or right of way, of 100 feet in width. As to this strip or right of way, defendant sets up and claims that, in 1870 or 1871, its predecessor in title entered, and located and constructed the railroad thereon, with the knowledge and consent and by agreement with the then owner of said land, and in accordance with said agreement appropriated for the right of way and railroad said strip of 100 feet, being 50 feet on each side of the center line of said track, and that defendant, and those under whom it claims, have ever since continuously claimed and occupied the same for said purposes. The case was tried by the court, and plaintiff recovered judgment for 37½ feet on each side of a strip of 25 feet through the middle, on which the railroad track is actually located and constructed, and which, plaintiff concedes, defendant has the right to hold and enjoy. The real controversy, therefore, is as to the remaining 75 feet, being the two strips of 37½ feet each on each side of said 25-feet strip through the center of the 100-feet strip or right of way.

Defendant admits that the plaintiff has the valid record title, by warranty deed, to the quarter section described in the petition; and plaintiff concedes that defendant is the legal successor to the St. Louis, Lawrence & Denver Railway Company, which, about the year 1870, built its railroad and laid its track across said quarter section. At that time, in 1870 or 1871, one Browning was the owner and resided on this quarter section. It is conceded that, before the said company entered upon the land, said Browning said he would give the right of way; that he was present while the engineers were locating the same, and subsequently declared that he had given the right of way. But plaintiff contends that this entry was under a mere license, and that the company did not occupy thereunder more than 25 feet, and therefore can claim to that extent, but no further. In other words, the position of plaintiff is that Browning, and those claiming under him, had and have the legal title to the whole quarter section, subject to the license given by Browning to the railroad company, and that they have the actual and constructive possession to all of it, except what the railroad company has in its actual possession; that is, the road-bed on which the track is actually laid.

The learned and able counsel for plaintiff has pointed out that a right of way, properly so called, is an easement, — an interest in land of another, — and ordinarily it can only be acquired by deed, or what is equivalent thereto, and that a parol license is insufficient for that purpose. So, too, he concedes that a parol license, when executed, operates by way of estoppel, and may ripen into title by prescription, but claims that the right or title thereunder extends in no case beyond the boundary of the executed license. The propriety, in general, of these views, may be conceded; but their application in given cases, such as the one now before us, may be, and often is, somewhat difficult. How far, for example, with respect to the possession, shall the license, regarding the transaction in question as of that character for the present, be deemed to have been executed? This may depend, we think, upon a variety of conditions and circumstances presented by particular cases. Obviously, in cases like the one now under consideration and review, the principal use of the strip of land given for the railroad will be to support the railroad track or tracks over which the trains will run from time to time. The expenditure of labor and money which creates the equitable estoppel, if any is created at all, as against the land-owner and his grantees, is made upon that portion. But should the license, if such it is, be held to be executed only so far, and the right of possession taken thereunder be limited to the actual road-bed, in cases of this sort, where the facts are as in the record before us?

Perhaps a few citations from the evidence, which is undisputed in this behalf, will best show what actually took place, with reference to the strip in question, between the original land-owner and the original company making its entry thereon. A. C. Briant testified: "I was interested in having road built, and, with John Bartleson and some one else, was appointed a committee to get right of way. Bartleson and I went to Dr. Browning's house, and talked with him about it, and he said he would give the right of way for the road." And on cross-examination: "John Bartleson and I, and some one else, — I don't remember who, — were on a committee to get right of way. We saw Dr. Browning between preliminary survey and permanent location of road. He said: `I'll give the right of way.'" John C. Bartleson testified: "Through the company's attorney, Mr. Van Waggoner, of St. Louis, I was employed to assist in procuring the right of way for said railroad through the section of country in which I then lived, and in company with Mr. Van Waggoner went to George W. Browning, who had full control and possession of this Duncan farm, to secure right of way across same; and, in my presence and hearing, said Browning granted and pledged to Mr. Van Waggoner a right of way for said railroad across and through his said land, the Duncan farm. Mr. Browning granted this right of way freely, fully, and without any reservation; and the railroad was constructed across his land without any opposition from him or any one else, he at that time residing on this farm, where he resided for a long time thereafter. He was, to my knowledge, a strong supporter of the railroad, and anxious for its construction." It is obvious upon this evidence that said Browning intended to give, and did verbally agree to donate, the right of way. As to the extent thereof, it appears, we...